Since 1977, Jon Michael Probstein has assisted people and businesses in all matters. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Friday, October 30, 2015

"We reject
defendant's contention that Supreme Court erred in determining that the
disputed trust account, funded with plaintiff's premarital property and
property acquired by gift or inheritance, was plaintiff's separate property.
It is well settled that separate property that is " ‘commingled with marital
property or is subsequently titled in the joint names of the spouses is
presumed to be marital property’ " (Gately v. Gately, 113 AD3d 1093, 1094,
lv dismissed 23 NY3d 1048), and that "[t]he party seeking a finding of
separate property has the burden of rebutting that presumption" (id.). Here,
the uncontroverted evidence at trial "trace[d] the source of the
[commingled] funds ... with sufficient particularity to rebut the
presumption that they were marital property" (id. at 1903 [internal
quotation marks omitted]). Defendant stipulated to the introduction in
evidence of the forensic accounting report prepared by plaintiff's
accountant "subject to whatever legal arguments either party may advance"
regarding certain aspects of the report. Furthermore, plaintiff's accountant
was the only expert witness who testified regarding the report and the
ability to distinguish plaintiff's separate property from the parties'
marital property even after they were commingled. Plaintiff also rebutted
the presumption that the commingled separate property is now marital
property by establishing that her transfer of her separate funds into a
marital checking account for 95 days was merely a convenient means of
transferring her separate funds into her trust account (see Noble v. Noble,
78 AD3d 1386, 1389). Furthermore, the marital checking account in which the
funds at issue were commingled was held only in plaintiff's name (see
Chamberlain v. Chamberlain, 24 AD3d 589, 593)."

Wednesday, October 28, 2015

"In appeal No. 1, the mother contends that the Attorney for the Child (AFC)
violated her ethical duty to determine the subject child's position and
advocate zealously in support of the child's wishes, because the AFC
advocated for a result that was contrary to the child's expressed wishes in
the absence of any justification for doing so. We reject that contention.
The Rules of the Chief Judge provide that an AFC "must zealously advocate
the child's position" and that, "[i]f the child is capable of knowing,
voluntary and considered judgment, the [AFC] should be directed by the
wishes of the child, even if the [AFC] for the child believes that what the
child wants is not in the child's best interests" (22 NYCRR 7.2[d][2]; see
Matter of Swinson v. Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d 862). A
contrary rule arises where, as here, "the [AFC] is convinced either that the
child lacks the capacity for knowing, voluntary and considered judgment, or
that following the child's wishes is likely to result in a substantial risk
of imminent, serious harm to the child[. In such circumstances, the AFC]
would be justified in advocating a position that is contrary to the child's
wishes" (22 NYCRR 7.2[d][3]; see generally Matter of Carballeira v. Shumway,
273 A.D.2d 753, 755–756, lv denied 95 N.Y.2d 764). Here, "the evidence
supports the court's conclusion that ‘to follow [the child's] wishes would
be tantamount to severing her relationship with her father, and [that]
result would not be in [the child's] best interest[s]’ " (Matter of Marino
v. Marino, 90 AD3d 1694, 1696). We conclude that the mother's persistent and
pervasive pattern of alienating the child from the father "is likely to
result in a substantial risk of imminent, serious harm to the child" (22
NYCRR 7.2[d][3]), and we conclude that the AFC acted in accordance with her
ethical duties."

Plaintiff Quinones was 12 years old when she testified, recalling
events when she was 10½ years old. To rely on a 12-year-old minor's
testimony, the court must find she had sufficient capacity and
intelligence, not only to comprehend the nature and obligations of the
oath she took at her deposition, but also to recall and give an accurate
account of what she saw or heard concerning the material events or
circumstances she was questioned about. (People v Parks, 41 NY2d 36, 45 [1976]; People v Singleton, 284 AD2d 249 [1st Dept 2001]; People v Taylor, 244 AD2d 152, 153 [1st Dept 1997]; People v Bunche,
235 AD2d 271, 272 [1st Dept 1997].) Competency determinations, at least
where the child witness is a complainant testifying against a defendant
in a criminal action, rely on the trial court's opportunity to observe
the witness, her demeanor and presence of mind, and undertake inquiries
that disclose her capacity and intelligence. (People v Parks, 41 NY2d at 46; People v Taylor,
244 AD2d at 153.) "Impressions that may be validly drawn only from
closehand personal observation cannot be 'photographed into the record'
for later study." (People v Parks, 41 NY2d at 46.)

Against this authority, may the court in the context of summary
judgment motions rely on a minor's testimony, already sworn, without
actually observing the witness and conducting an independent inquiry to
determine her competency? To rely on the minor's testimony as defendants
seek, for purposes of granting them summary judgment and dismissing
plaintiffs' action, obviously will preclude the trial judge from making
this determination for purposes of the trial.

For purposes of the pending dispositive motions, plaintiff
Quinones already was sworn and testified, without plaintiffs' or any
other party's objection. While objections to a witness' competency are
not waived by the failure to pose them before or during her deposition
as she responded to questions (CPLR 3115 [d]), the action is now at a
potentially dispositive juncture. Neither at the deposition, nor in the
context of these motions, have plaintiffs or any other party raised any
question, based on the opportunity for "closehand observation" they had
at the deposition, that the minor did not have the capacity or
intelligence to understand and respond to any question posed or to
recall and accurately recount material facts. (People v Parks, 41 NY2d at 46.)

The context here departs from the authority governing criminal
trials in critical respects. A deposition upon oral questions is not a
discovery device in criminal actions (e.g., CPL 240.20), so there
is no opportunity before the trial for "closehand observation" of a
child witness and scrutiny of her capacity and intelligence. (People v Parks,
41 NY2d at 46.) Here, although the court had no such opportunity except
study of the transcript and corroborating or conflicting evidence, the
parties had a thorough opportunity. Concomitantly, there
is no analogy in criminal actions to the summary dispositions upon
admissible evidence, routinely sought, and for which the parties
therefore must be prepared, in civil actions.

In addition, while one side, here defendants, seeks to rely on
the minor's testimony against the other side, unlike the prosecution
relying on its complaining witness as an accuser against the other side,
defendants rely not on their own witness, but on the other side's own
witness, plaintiff Quinones. Most critically, and perhaps the
explanation for plaintiffs' reluctance to raise a competency issue, if
plaintiffs are to prevail, they must rely on the minor's testimony as
well. Although her mother, plaintiff Alcantara, was present for the
material events, neither side has found her recollection and account
sufficiently useful to rely on her, despite her capacity as an adult, to
support the parties' positions. Hence the minor is the witness on whom
all parties must rely if they are to establish their claims or defenses.

Keeping the age of the key witness foremost in mind, the court
finds no hint in the record that she was confused by the questions posed
to her or had any difficulty expressing her recollection of the
material events or her intended meaning. Nothing in the plaintiff
mother's testimony or anywhere else in the record is in any way
inconsistent with or otherwise casts any doubt on the certainty of the
minor plaintiff's testimony. (See Totan v Board of Educ. of City of N.Y.,
133 AD2d 366, 369 [2d Dept 1987].) In fact the mother corroborates both
that the snow was "spread" over the part of the sidewalk where her
daughter fell (affirmation of David Holmes, exhibit G, at 17), and that
"more snow" had fallen "on top" of the snow that had been shoveled and
salted. (Id. at 20.) This careful scrutiny provides assurance even where no issue was raised regarding the daughter's competency.

In these circumstances, in the context of summary judgment
motions, where the parties against whom a minor's testimony is used
raised no objection to the testimony and also must rely on it, the
court, after scouring the record for uncertainty in the testimony and
finding none, may rely on a sworn 12 year old's account, without her
appearance and further examination. Consequently, based on the admission
that no shoveling was observed in the area where plaintiff Quinones
fell and that no additional salt had been spread there since she had
walked there hours earlier, the Caballero defendants, at least,
establish defendants' freedom from liability."

Monday, October 26, 2015

"The Supreme Court properly granted that branch of the plaintiff's motion
which was for a downward modification of his maintenance obligation. The
plaintiff demonstrated that his loss of employment was unavoidable, that he
made a good-faith effort to obtain employment commensurate with his
qualifications and experience, and that continued enforcement of the
maintenance obligation as set forth in the parties' separation agreement
would create an "extreme hardship" (cf. Lewis v. Lewis, 43 AD3d 462,
463–464; see Beard v. Beard, 300 A.D.2d 268, 269; Pintus v. Pintus, 104
A.D.2d 866, 868–869). The Supreme Court also providently exercised its
discretion in imputing $450,000 in income to the plaintiff based upon, inter
alia, his educational background and employment history (see Matter of
Julianska v. Majewski, 78 AD3d 1182, 1183; Friedman v. Friedman, 309 A.D.2d
830, 831), and reducing his maintenance obligation to the defendant from
$16,666 per month to $6,375 per month, taking into consideration, inter
alia, the relevant factors enumerated in Domestic Relations Law §
236(B)(6)(a) (see Baron v. Baron, 71 AD3d 807, 809; Otto v. Otto, 207 A.D.2d
530, 532).

Thursday, October 22, 2015

Today is another day of volunteering as a student mentor. This program is offered through the Nassau County Bar Association:

"Student Mentors

Provide
valuable adult guidance and serve as a role model for at-risk middle
school students in one-on-one sessions at a local middle school. The
commitment is twice a month for less than an hour, but the rewards you
receive are immeasurable. Mentors are always in demand.

Monday, October 19, 2015

Many years ago, a member of my family died under unusual circumstances. An autopsy was performed by the NYC Medical Examiner. But I was not aware of the procedures and policies as confirmed by the Court of Appeal this June in Shipley v. City of New York, 2015 NY Slip Op 4791 (COA NY 2015).

Here is a summary of the case from JUSTIA:

"Jesse Shipley (the decedent), a seventeen-year-old high school student, was killed in an automobile accident. During an authorized autopsy, the medical examiner removed, among other organs, the decedent’s brain, fixed it in formalin, and placed it in the autopsy room for further examination by a neuropathologist. The decedent’s body was subsequently retrieved from the mortuary, and a funeral was held. Approximately three months later, the decedent’s family discovered that the decedent’s brain had been retained by the medical examiner. Plaintiffs, the decedent’s family, commenced this action against the City of New York alleging negligent infliction of emotional distress resulting from the mishandling and withholding of their son’s brain. Supreme Court granted Plaintiffs’ motion for a directed verdict as to liability. After a trial, Plaintiffs were awarded $1 million in damages. That amount was subsequently reduced. The Court of Appeals reversed, holding that a medical examiner is not legally required to notify next of kin that organs, tissues or other specimens have been removed from the body during a lawful autopsy and retained by the medical examiner after such an autopsy."

Thus, when faced with this unfortunate situation and preparing for funeral, one must immediately inquire to the examiner as to what was done and what can be returned.

NOTE: How did the Shipley family know that their son's brain was retained by the medical examiner? After Jesse's death, "forensic science students from decedent's high school took a field trip
to the Richmond County Mortuary. During a tour of the autopsy room, some
of the students observed the specimen jar holding decedent's brain.
This information was relayed to decedent's sister, Shannon, who told her
parents."

"All concur except CENTRA, J.P., and PERADOTTO, J., who dissent and vote to
modify in accordance with the following memorandum:

We respectfully dissent in appeal No. 1 because, in our view, Supreme
Court's determination awarding sole legal and physical custody of the
parties' child to plaintiff mother lacks a sound and substantial basis in
the record (see Matter of Bryan K.B. v. Destiny S.B., 43 AD3d 1448, 1449).
We would therefore modify the order in appeal No. 1 by awarding sole custody
to defendant father with visitation to the mother and remit the matter to
Supreme Court for a different justice to fashion an appropriate visitation
schedule (see id. at 1451; see also Sitts v. Sitts, 74 AD3d 1722, 1723–1724,
lv dismissed 15 NY3d 833, lv denied 18 NY3d 801). We agree with the
majority's resolution of appeal No. 2.

Although, as a general rule, the custody determination of a trial court is
entitled to great deference (see Eschbach v. Eschbach, 56 N.Y.2d 167,
173–174), "[s]uch deference is not warranted ... where[, as here,] the
custody determination lacks a sound and substantial basis in the record"
(Fox v. Fox, 177 A.D.2d 209, 211–212; see Sitts, 74 AD3d at 1723).
Ultimately, we must determine what is in the child's best interests " ‘and
what will best promote [his] welfare and happiness' " (Eschbach, 56 N.Y.2d
at 171). In making that determination "numerous factors are to be
considered, including the continuity and stability of the existing custodial
arrangement, the quality of the child's home environment and that of the
parent seeking custody, the ability of each parent to provide for the
child's emotional and intellectual development, the financial status and
ability of each parent to provide for the child, and the individual needs
and expressed desires of the child" (Bryan K.B., 43 AD3d at 1450 [internal
quotation marks omitted]; see Eschbach, 56 N.Y.2d at 171–173).

In our view, the court erred in weighing those important factors, and its
determination, therefore, lacks a sound and substantial basis in the record.
Most glaringly, the court failed to give sufficient weight to the child's
preference to live with the father (see Matter of Rivera v. LaSalle, 84 AD3d
1436, 1437–1439). As the majority acknowledges, the expressed wishes of the
child are "entitled to great weight" in light of his age and relative
maturity (Veronica S. v. Philip R.S., 70 AD3d 1459, 1460; see Matter of
Mercado v. Frye, 104 AD3d 1340, 1342, lv denied 21 NY3d 859).

The child, who was already 13 at the time of the court's order in appeal No.
1, is now 15 years old. For the last six years, he has consistently
expressed his desire to live with his father, and the Attorney for the Child
on this appeal asserted in her brief and at oral argument that the child
still wants to live with his father. The child's preference was expressed to
the court-appointed custodial evaluator in his mother's presence. The
custodial evaluator agreed that the child's disclosure in front of his
mother was an indication that his preference was genuine. In addition, the
custodial evaluator testified that the child's preference did not appear to
be the result of influence or coercion by the father (cf. generally
Eschbach, 56 N.Y.2d at 173). Although the custodial evaluator further
testified that the child's preference reflected "his wish to be loyal to the
father [and] his wish to have his father be happy," we do not view such
loyalty and attachment as a reasonable basis for disregarding the child's
preference and maintaining custody with the mother.

The court's determination also lacks a sound and substantial basis in the
record insofar as that determination is based on the conclusion that the
mother was better equipped to handle the child's psychological and emotional
needs. Although the mother has been the child's primary custodial parent for
many years, her relationship with him has substantially deteriorated. The
record reflects the mother's inability to handle the normal challenges of
raising a teenager and her apparent failure to deal with those challenges
without the use of force or profanity. The mother's difficulty in dealing
with the child is further demonstrated by the fact that she was often
compelled to resort to contacting the father or others to assist in
controlling the child's outbursts or "to get [the child] to do things." The
custodial evaluator testified that the father, unlike the mother, had "no
issues controlling [the child's] conduct ." The progressively deteriorating
and antagonistic relationship between the child and his mother is further
evidenced by incidents in which the child kicked a hole in a wall at his
mother's house and threw a phone at his mother. The antagonism between the
child and his mother demonstrates "a total breakdown in communication ...
requir[ing] a change in custody" (Eschbach, 56 N.Y.2d at 172; see Matter of
Maute v. Maute, 228 A.D.2d 444, 444–445).

The total breakdown in communication is further exemplified by evidence of
the mother's physical violence against the child, and the court failed to
address and adequately account for the undisputed evidence of physical
confrontations between the mother and the child. For example, the mother
admitted to slapping the child's face "[a] couple times" when he "got[]
mouthy," disrespectful, or rude, and she testified that she was justified in
striking the child for that reason. The court was required to consider the
effect of domestic violence upon the best interests of the child (see Matter
of Moreno v. Cruz, 24 AD3d 780, 781, lv denied 6 NY3d 712, quoting Domestic
Relations Law § 240[1]), and it failed to do so here. We conclude that the
evidence of domestic violence further supports an award of sole custody to
the father (see Moreno, 24 AD3d at 781; see also Matter of Caughill v.
Caughill, 124 AD3d 1345, 1347).

The court also determined that the mother was more able and willing to meet
the child's educational needs. During the academic year before the mother
commenced her action for divorce, when the child was in second grade, the
child achieved a final grade of A in all of his academic subjects. Since
then, he has received more B and C grades primarily, it seems, because of a
lack of discipline and focus. Whatever the reason, be it the ineffectiveness
of the mother or the rebellion of the child, it is undeniable that his
academic performance has declined while the mother has been the primary
custodian.

"It is well settled that ‘[t]he authority of the Appellate Division in
matters of custody is as broad as that’ of the trial court" (Sitts, 74 AD3d
at 1723, quoting Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946,
947). "[W]here ... the record is sufficient for this Court to make a best
interests determination ..., we will do so in the interests of judicial
economy and the well-being of the child" (Caughill, 124 AD3d at 1346
[internal quotation marks omitted]). We conclude that the record, which
includes two Lincoln hearings, is sufficient for us to make a best interests
determination here (see Matter of Cole v. Nofri, 107 AD3d 1510, 1512, appeal
dismissed 22 NY3d 1083) and, upon review of the relevant factors, we further
conclude that it is in the child's best interests to award sole legal and
physical custody to the father.

Finally, we note that the evidence to support an award of custody to the
father would likely have been even stronger had the trial level attorney for
the child (AFC) properly acted as an advocate for her client. Contrary to
the position of the majority, we conclude that the AFC "failed to fulfill
[her] essential obligation" to her client (Matter of Mark T. v. Joyanna U.,
64 AD3d 1092, 1095). The Rules of the Chief Judge provide that an AFC "must
zealously advocate the child's position ... even if the [AFC] believes that
what the child wants is not in the child's best interests," unless the AFC
"is convinced either that the child lacks the capacity for knowing,
voluntary and considered judgment, or that following the child's wishes is
likely to result in a substantial risk of imminent, serious harm to the
child" (22 NYCRR 7.2 [d][2], [3]; see Matter of Swinson v. Dobson, 101 AD3d
1686, 1687, lv denied 20 NY3d 862). Because neither exception allowing the
AFC to substitute her own judgment for that of the child is implicated here,
she was obligated to zealously advocate the child's position (see Swinson,
101 AD3d at 1687; Mark T., 64 AD3d at 1095; cf. Matter of Rosso v.
Gerouw–Rosso, 79 AD3d 1726, 1728), and she failed to do so.

Despite the child's consistently expressed desire to live with the father,
at trial the AFC objected repeatedly during direct-examination of the father
and cross-examination of the mother, but did not object during direct
examination of the mother or cross-examination of the father. The AFC also
called as a witness a custodial evaluator whose recommendation was directly
contrary to the child's preference to live with the father. We cannot agree
with the majority that the AFC fulfilled her obligation to her client by
merely informing the court of the child's wishes "without recommending any
finding to the contrary." In our view, the AFC merely parroted the child's
position to the court in a perfunctory fashion, and did not fulfill her
ethical obligation to act as a zealous advocate for the child and to give
voice to the child's wishes (see 22 NYCRR 7.2[b], [d]; see generally Mark T
., 64 AD3d at 1094–1095; Matter of Dominique A.W., 17 AD3d 1038, 1039–1040,
lv denied 5 NY3d 706). The AFC's inadequate representation of the child at
the trial level further justifies reversing the court's custody determination in appeal No. 1."

Tuesday, October 13, 2015

In yesterday's Newsday, the front page story centered on FEMA's claw back attempts on Sandy victims who received overpayments.

We all know that in Louisiana, etc. was at the forefront of FEMA issues due to Hurricane Katrina and a Louisiana legal group put together a pamphlet "FEMA Wants Money Back? Self-Help Guide to the Debt Repayment Process":

I attended a TRID training seminar recently and the consensus is that because residential sales must be handled differently, some of the past practices will no longer apply. Buyers, and Sellers, should now be made aware that this cannot be an accelerated process and attorneys should advise Sellers and Buyers of the effect of the TRID rules.

Thursday, October 8, 2015

Today I begin my second year of volunteering as a student mentor. This program is offered through the Nassau County Bar Association:

"Student Mentors

Provide
valuable adult guidance and serve as a role model for at-risk middle
school students in one-on-one sessions at a local middle school. The
commitment is twice a month for less than an hour, but the rewards you
receive are immeasurable. Mentors are always in demand.

Wednesday, October 7, 2015

It depends. Section 375 (12-a) of the NYS Vehicle and Traffic Law does not allow a windshield or front side windows that are dark. The windshield and front side windows cannot block more than 30% of the light. Seventy percent or more of the light from the outside must pass through the window. This law also applies to the rear window unless the vehicle has outside rear-view mirrors on both sides. The mirrors must give the driver a full and clear view behind the vehicle.

If the vehicle is classified as a station wagon, sedan, hardtop, coupe, hatchback or convertible, the rear side windows must also allow at least seventy percent of light from the outside to pass through the window.

It is illegal to sell, offer for sale, or install glass that does not comply with this law. It is illegal to operate a vehicle with glass that does not comply with this law.

If you have a medical condition that requires you to have tinted vehicle windows, you can request an exemption from the law. Request form MV-80W from a DMV Office or Call Center."

Tuesday, October 6, 2015

Consumers applying for most mortgages now face less stress when
shopping for their loan since our new rule and forms took effect on October 3.
We made these changes to ease the process of taking out a mortgage, help you
save money, and ensure you Know Before You Owe.

Friday, October 2, 2015

October 3 is the start date for the new Loan Estimate and Closing Disclosure requirements a/k/a the “Truth-in-Lending RESPA Integrated Disclosure” Rule a/k/a TRID that will combine two existing disclosure regimes under TILA and RESPA and make mortgage disclosure easier for consumers to understand and use.

Thursday, October 1, 2015

October is Domestic Violence Awareness Month and the National Coalition
Against Domestic Violence has called for a national day of awareness and will
Take a Stand Against Domestic Violence On October 1,
2015 in Washington DC and across the nation. There will be a a national
"moment of silence" for the victims of domestic violence at 11:00 am
EST.

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/